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ADDRESS 


^^DELIVERED BEFORE THE WHIGS OF NEWARK, 


JVLT 4th, 4834. 

BY OUTER S. '^AESTED. 















\ 



DELIVERED BEFORE THE WHIGS OF NEWARK, 


JULY 4th, 1834. 



SY dLlVEK S. HAESTED.' 

’ r 

f 



3 . B. PINNEO & CO. PRINTERS, 


J7 


Newarltj N, J» 






Wednesday morning, July 9th, 1834. 


To Oliver S. Halsted, Esa- 

Dear Sir :—The undersigned have it in charge to convey to you the following Re¬ 
solution, passed on the 7th inst. at a meeting of the Newark Whig Committee of Ar¬ 
rangements, for the celebration of the past National Anniversary. 

“ Resolved, That a Committee be appointed to express to Oliver S. Halsted, esq.^ 
our warmest thanks for his able exposition of the usurpations of the Executive Govern¬ 
ment, and for his eloquent vindication of the cause in which we are engaged, and to re¬ 
quest a copy of his address for publication.” 

In performing the duty assigned us, we cannot refrain the expression of a belief that 
public sentiment calls for a compliance with the wishes of the Committee, and that the 
circulation of an address replete with powerful argument and patriotic sentiment, will 
advance the cause of the Constitution and of Liberty. 

With high respect, we are 

Your Obedient Servants, 

A. W. KINNEY, ) 

C. C. WARD, > Committee. 

A. C. M. PENNINGTON, ) 


To A. W. Kinney, 

C. C. Ward, and 

A. C. M. Pennington, Esors. 

Dr. Sirs : — In answer to your polite note, enclosing a resolution of iheCommittee of 
Arrangements, requesting a copy of the address delivered before the Whigs of Newark, 
on the 4th of July, for publication, permit me to say that it is only in reliance on the 
opinion the Committee have been pleased to express through you,— that the sentiments 
it embodies, may aid the cause of the Constitution,— that I am induced to furnish the 
copy requested, 

Very Respectfully, 

Your Obedient Servant, 

OLIVER S. HALSTED. 



/ 



ADDRESS . 


Fellow Citizens — 

By the^Declavation just read in our hearing, the Whigs of 
’76 consecrated this day to the cause of free institutions, the 
cause of Constitutional Government, the cause of the People 
against Prerogative. 

This was no new warfare at that day. This same contest, 
to circumscribe prerogative within defined limits, had been the 
Whig cause for ages ; and this was the party, to which, as a 
people, our fathers belonged, in the great political controversy 
which has so long agitated the world, between absolute gov¬ 
ernment and popular rights. To the interests of this great 
party, let this, its proudest day, be sacredly devoted. Our po¬ 
sition, as soldiers in this warfare, we inherited from our illustri¬ 
ous sires. With the possession of all they won, has descended 
upon us the inalienable character of belligerents in the sacred 
cause of civil liberty. We are no man’s men, but men of free 
institutions,— Freemen, pledged to a cause of principles. In 
short, we are not men of Cesar, but men of Rome. 

With the inheritance of this fair land, we received the fairer in¬ 
heritance of the character of American Whigs — the staunchest 
the world ever saw, and who achieved the noblest, and we trust 
in God the most enduring, triumph of their principles. This char¬ 
acter we received unbought, from those who bought it at the price 
of blood, paid down in generous measure. The amount of that 
price I cannot now stop to tell, nor to enumerate the periods 
when, nor the fields on which it was paid. The duty assigned 
me on this occasion calls my thoughts in another direction. 

Our British ancestors had made great progress in this cause 
of popular rights, previous to our Declaration of Independence, 
and had done more than any of the modern nations of Europe, 
in prescribing to the Lion of Executive power, the length of his 
chain. I will glance at their history at two points, to shew 
this progress. 


6 


About six hundred years ago, they obtained at Runnemede 
a charter of liberties from King John. The limited extent to 
which they then understood the eternal principles of freedom, 
as they were afterwards written out by their American descend¬ 
ants, is plainly visible in that transaction ; for though they ob¬ 
tained that charter at the point of their swords, yet it is, both 
in its form and in its provisions, a mere grant of privileges from 
the Crown. They were bold and fearless Whigs — woithy 
sires of that people, whose glory it is to have given to the world 
the Declaration of the rights of man ; yet the principles of this 
great cause had then been so partially developed, that they were 
willing to conduct their negotiation with their sovreign, on the 
basis, that one man could grant liberties to the body of the 
people. 

The other period of their history to which I shall allude, is 
that of their revolution in 1688. For four years immediately 
preceeding that period, one continued struggle had been kept 
up between the people and the crown. In that year. King 
James II. was deposed, on the charge, among other things, 
of “ having endeavored to subvert the constitution of the king¬ 
dom, and having by the advice of Jesuits and other wicked 
persons, violated the fundamental laws ; ” and the crown was 
settled on the Prince and Princess of Orange. It appears that 
at this time, the British people had become better instructed in 
the principles of civil liberty ; for, instead of taking a grant of 
privileges from the king, as had been done from king John, the 
convention which settled the crown, annexed to the settlement, 
a declaration of rights in the people. This, though it still fell 
short of the true doctrine, was a great advance in the cause. It 
is, certainly, a much nearer approach to the true Whig principles, 
as settled in our Declaration, for the people to make declara¬ 
tions of rights in themselves, than for prerogative to make grants 
of privileges to the people. 

Our immediate ancestors, then — our American fathers —- 
were well descended. They inherited the highest spirit of 
civil liberty known to the Old World; the best Whig blood 
of Europe ; and being settled here under forms of Colonial 
government, (allowed by the Crown) more free than that en¬ 
joyed in England, they soon outgrew the parent stock. In 
less than one hundred years from the period last mentioned, 
the sons of Brittons, in this Hemisphere, advanced to the full 


7 


comprehension of the doctrine of human rights, and proclaimed 
to the world as a self-evident truth, that “ it is the right of the 
people to mstituie Government, laying its foundations in such 
principles, and organizing its powers in such form, as to them 
shall seem most likely to effect their safety and happiness.”— 
To the maintenance of this great truth, they dared to pledge all 
that is dear to freemen, and, praise to the God of battles, they 
made good in the field, what they had resolved in the council. 
We cannot now speak of their deeds of valor ; we will only 
say, it is easy for us who enjoy the fruits of their success, to say, 
’twas nobly done. It is easy to imagine, that in the hour of trial, 
with the thick night of uncertainty, and the fearful odds of war, 
and fate of rebels before us, we, too, might have dared to 
resolve, to die or be free ; but with us ’tis all conjecture, we 
might have failed. There were men of that day, who bowed 
assent to the encroachments of power ; yes, there were Amer* 
leans of that day, who cowered before a British Executive. I 
will not give them a name. I say, therefore, that with each 
and every one of us, ’tis all conjecture ; we, too, might have 
failed in that fearful hour, which tried and proved the souls of 
men. 

To them alone, the Whigs of ’76, belongs the meed of proven 
valor. The only proof that remains to us, of kindred spirit, is 
by shewing a proper sense of the value of the inheritance, 
bought with the blood of such an ancestry. 

I have thus endeavored to show, briefly, that the grand prin¬ 
ciple of the Declaration of Independence, is that all powers of 
Government are the grant of the people, in opposition to the 
monstrous doctrine that till then had ruled the world, that all 
popular rights are the grant of kings. 

Our British ancestors had stopped short of perfect triumph, 
in stopping at a declaration of rights. This still left them in 
the false position in which the people are placed in relation to 
government, in the Old World. The truth is, they had been 
so long subjected to the vassalage of the feudal system, which 
was built on the principle, that they held every thing of the 
king, every foot of land, and every civil privilege, that it would 
have seemed to them a subversion of first principles, to declare 
that the powers of government must proceed from them by 
grant. The advance they made in the revolution of 1688, was 
perhaps, the greatest advance they could make, beginning fronr 


a 


their original false position. But our American fathers per¬ 
ceived, that this was beginning at the wrong end, and that the 
cause of the rights of man, could not fully and finally triumph 
in any other way, than by inverting the relative position exist¬ 
ing in Europe, between the people and the government, and 
adopting the principle that it belongs to the people to declare, 
not what rights they possess, but, what powers they will grant to 
government; that “it is the right of the people to institute 
government and to organize its powers in such form, as to them 
shall seem most likely to effect their safety and happiness.’’ 

Of this radical doctrine of the Declaration of Independence, 
the framers of our Constitution had a strong and clear concep¬ 
tion ; and they accordingly instituted that instrument, not upon 
the principle, that the government would have all powers, except 
such as were reserved to the people, but on the reverse propo¬ 
sition, that the people kept all power, not granted to the Gov¬ 
ernment. On this principle, what have the people to do with 
declaring their rights ? they have all rights — they have noth¬ 
ing to do but to declare, what powers they will grant to their 
agents, wherewith to govern them, and to what extent; the res¬ 
idue is with them ungranted. When we declare by the Consti¬ 
tution “ all legislative power herein granted, shall be vested in a 
Congress,” the residue of legislative power, not granted, is with 
us. And when we declare by the Constitution “//le Executive 
power shall be vested in a President,” and proceed in the instru¬ 
ment to declare the powers of the Executive, we plainly mean 
the Executive poicer therein granted. The residue of Executive 
power is with us. W^as it necessary, then, to accompany the 
Constitution with a declaration, that we were not the subjects 
of the Executive, when we had in that very instrument told 
him, that we were his masters, and that he should exercise just 
so much power as we chose to vest in him, and no more. 

The Whigs of Newark, of 1834, have resolved, that the day 
on which this great first principle was settled, that all powers of 
government are the gift of the people, is the appropriate day for 
the free discussion of the measures of the Executive branch of 
our Government, at this extraordinary crisis — and rightly have 
they so resolved. The questions now pending between the Pres¬ 
ident and the Senate, and now to be tried and decided by the 
American people, are, first, is it true, that each department of the 
Government, has no more power than the people have specific- 


D 

aily granted to it ? and secondly, has our Executive exerciscrl 
powers not, granted 1 

The Senate have affirmed both these propositions. The 
President has denied them both, so far as the department he fills 
is concerned. 

The Senate affirm that the President has assumed powers 7iot 
granted. They tender the issue in the most ptecise and appro¬ 
priate language of freemen. “The President has assumed pow¬ 
ers not grantedby the Constitution.” This language, it will be 
perceived, contains an affirmation of the great prineiple of the 
"Whigs, of’76, that all powers of Government are the grant of 
the people ; that our Executive has no power except such as is 
granted by the people’s Constitution ; and that, when our Con¬ 
stitution says “the Executive power shall be vested in a f^resi- 
dent,” it means the Executive power defined in th6 grant, and 
no more. 

Now, extraordinary as it may appear, our present Executive 
claims an amount of power not defined in the gt’ant, limited 
only by the limit which he pleases to fix to his own responsi¬ 
bility. 

But before i proceed to develope what our praefi'ea/Execu¬ 
tive claims to be, I will attempt to shew what ouY* Constitutional 
Executive is. 

Before this protest appeared. Fellow Citizens, I had the hon¬ 
or of expressing, in this house, before an assembly of Whigs 
of the county of Essex on a similar occasion, what 1 
supposed to be the genuine American doctrine ; I alluded 
to a phrase which is in ffequent use among us, “ the char¬ 
ter of our liberties ; ” and condemned it as having no correct 
application to our institutioUs. It was observed, that we used 
the phrase, in allusion to the Magna Charta obtained by our 
British ancestors, from their king. That by the theory of their 
government, all their liberties were grants from the king ; that 
the people of that country, afe the King’s people, with such lib¬ 
erties as he has granted to them ; that here the case is revers¬ 
ed ; that the government of this country is the people’s goverir- 
rnent, with such powers only, as they have granted to it. That 
in England, the burden of proof lies on the people, that here, it is 
on the government. The^t there, if the people seek to exerci.'^e 
a liberty or privilege, they may be told, look at the grant of 
your privileges, if you can shew it to be there, you can exercise 

2 


It; but that here, if the Government seek to exercise a power, 
the people say to the Governiru*nt, look to the grant of your 
powers, if you prove It to be there, you can exercise it. 1 will 
here add that the word “ liberties,” in relation to the people, 
belongs to the Old W'orld : the people of F.urope have liberties 
or privileges ; the people of the United States have rights. 
Here it is the Government that has liberties, or privileges ; there, 
the rights are in the Government, the liberties In the people 
Here we have reversed the order of things ; the rights are in 
the people, the liberties, or privileges, in the Government. And 
the question now before the American people might well be put 
in this form : What liberties has the Government taken with 
our rights, and are we prepared to submit to such liberties or 
assumptions ? Some of these liberties will come under consid- 
eraiion, when I come to shew what our present Executive 
claims to be. I proceed in my present inquiry, what our Con* 
stitutioaal Kxecutive is. In a (’onstitutional government, a 
certain amount or mass of’ power, as much as the people 
think necessary for the government of themselves, in the way in 
which they are willing to be governed, is delegated by them in 
a written insti'umant called a ('onstitution. Our ('onstitution 
does not puf all this amount of power in one man’s hands ; nor 
does it provide that the Executive >hall be the residuary grantee 
of the instrument ; that is to say, it does not provide, that he 
shall have and exercise all powers of government not granted 
to the other departments. It distributes the powers intended to 
be granted, in distinct portions, to and among three departments 
of government ; to one, it gives the power to make laws, to 
another, the power to construe them when made, and to the 
third, the power to execute the laws as made and construed. 
The fast is called the Executive ; and for the purpose of ena¬ 
bling him to execute the laws, as made by the Legislature and 
construed by the Judiciary, the instrument puts into his hands 
the physical power of the nation ; that is to say, the army and 
navy ; but it does not give him the right to raise an army, it 
only gives him the commai d of it when raised ; nor does it give 
him the purse to pay the army, for though he could not legiti¬ 
mately raise an army by the Constitution, yet it was clearly 
s ;en, that it would not do to give him the purse ; for the power 
to pay men, might enable him to raise an army. And of this 
we have demonstrative proof In this reign, in the effects of the 


11 


power of pay now concentrated in the hands of this Executive. 
The power of reinovt;! from office, the power of crea/hi^ rncan- 
by removing those who will not, and hliing' their places 
with those who will serve ; a power, for which no words of 
grant can be found in the instrument, but a power, constiued to 
exist in him, together with the further pouer which his prime 
minister put into his hands, b) adding to the Cabinet, the Post- 
office department, and thus adding to his own imrncn-e patron¬ 
age, the almost unlimited patronage, and the unlimited secret- 
service fund of that department, has accumulated in his hands a 
power of pay, that has raised an army, which stands ready to 
back him for the third term, if he shall not see fit to name his 
successor. 

I am speaking now of the direct money power. I'he Con¬ 
stitution, as we understand it, don’t give to the Executive the 
n;oney of the nation ; wliat his partisans get of the people’s 
money must be drawn indirectly and applied covertly, under 
color of mail-contracts, or job-printing, or some sucii device ; 
such, for instance, as ^8-386 ,39, paid to Fran is Blair for 
printing proposals for cai-rying the mail, for two miOnlhs and 
twenty-iwo days immediately preceding the Presidential elec¬ 
tion ; a handsome bonus to the printer for the Fxer utive, the 
editor of the official Globe, by way ot keeping up a pure press, 
a pure idolizing press, a pure post-office press, hired to call hon¬ 
est men hirelings, ' 

There is no provision, then, in the Constitution, that the Ex¬ 
ecutive shall have the purse. 1’hat is placed under the guar¬ 
dianship of the Legislatui’C. Nor is therm any pi’ovision that if 
the Legislature shall commit its keeping to the discretion of arty 
officer appointed by the Presiderit, it shall be eonsideimd to be at 
the responsibility of the President, and he may thereform put it 
where he pleases. Nor is it provided, that if such officer shall 
undertake to exercise an independent discretlori, it shall be just 
cause of immoval. There is no provision in the Constitution 
making the Executive answerable for the morals of the people, 
ami therefore if a monster should g‘OW up among us, with the 
faculty of charming men out ol their principles and integrity, 
the Executive is not imquired by the Constitution to undergo the 
tortures of ten \Spanisli inquisitions, to restore bis subjects to 
their honest senses. 'I'here is no provision in the Constitution 
that the executive is the natural guardian of the liberties of the 


\2 


people. This defect, now sii})plied by the Fresident, may be 
accounted for, from the fact that our lathers liad quarreled so 
long and so recently with their old guardian, the Briti.sh king. 
Nor is there any provision in the Constitution that the executive 
is the “ direct representative of the American people.” (This 
is the language of the Protest.) 

But what sort of an Executive am I getting ? I dare say it 
has occurred to some of you that 1 have described such an Ex¬ 
ecutive as the present incumbent of that department will not be 
satisfied \vith ; for he has claimed all these powers, for which I 
have said, there is no provision in the Constitution. 1 have 
been inquiring what our Constitutional Executive is ; and my 
inquiry results in the opinion, that it is a kind of Executive not 
known to the Old World, and not constituted after any of their 
models, that it is simply an American Executive, that it is just 
such an Executive as the American Constitution creates by pos¬ 
itive provision ; not an omnipotent Executive, except so far as 
has been shorn down, (which, as I have said, is the descrip¬ 
tion of the British Executive,) but a powerless Executive, ex¬ 
cept so far as it has been built up by the Constitution. 

I will now atternpt to shew what our present Executive claims 
to be. I have already Intimated, that he is not at all satisfied 
with the measure of power we would assign to him, that is the 
strict measure of Constitutional grant ; and here we reach the 
ground of the controversy, now waged by our Executive against 
the American Senate. 

The Senate, the only department of the Government now' 
standing true to the letter and spirit of the Constitution, are in 
the breach, boldly declaring to the Executive, that he has over¬ 
stepped his powers, and insisting that he shall be confined wdth- 
in the limits of his specific grant. The presence of one of that 
patriotic body on this occasion, is indeed animating to the hearts 
of freemen. When the duty assigned to me shall be performed, 
may w'e not hope to hear, in the thrilling accents of our own 
Frelinghuysen, what he yet thinks of the question, as it has 
been put to us in the language of one of his associates, “ w'heth- 
“ cr the Senate be a faction, wantonly resisting lawful pow'er, 

or whether it be opposing wdth firmness and patriotism, viola¬ 
te tions of law, and inroads upon the Constitution.” 

In the short space allotted to this exercise, I cannot go so 
fully as I could w^ish, into the nature of the particular act of the 


n 


Executive that brought on the direct collision between him and 
the Senate. It was the removal of an officer, in whom Con¬ 
gress had vested a discretion over the public treasure, because 
that officer would not remove the treasure from a safe place, to 
unsafe places, at the bidding of the President; because he 
would not yield his sworn discretion and act in opposition to it. 
In short, it was the removal of an officer, by the Executive, be¬ 
cause that officer was incorruptible. 

Is it not plain, that the Secretary had made up a conscien¬ 
tious judgment on the question of removing the deposits ? He 
was the President’s friend, and would gladly have thought with 
him. Is it not plain, that for the Secretary to act in opposition 
to his own sense of duty, would have been corrupt ? Did not 
the President endeavor to induce him so to act ? and did he 
not remove him, because he could not succeed? Yes, Fellow 
Citizens, all the mystery “ in the soul of state,” and all the mysti¬ 
fication of both cabinets, cannot disguise the truth, that in remov¬ 
ing Duane, the President took the responsibility of removing an 
officer, because that officer was incorruptible. Which of the 
names of all his predecessors, can any man in imagination asso¬ 
ciate with such an exercise of the power of removal! In this 
act Gen. Jackson assumed another kind of responsibility, the re¬ 
sponsibility of throwing out in the face of the nation, demonstra¬ 
tive proof of the correctness of a great man’s estimate of his 
character, who said of him, years before this developement, that 
in the way of any settled purpose of his mind, neither laws nor 
constitution, would oppose any barrier. Is it not true, that by 
the very genius of our system, the President, of all other officers 
in the nation, is denied, and excluded from, any control over 
the public monies ? Is it not true, in the United States Govern¬ 
ment, as it is in all the State Governments, that the Legislature 
hold the purse ? Will any man gainsay these positions ? Has 
not the President assumed such control ? He avows it, calls the 
removal of the public monies from where the Legislature had 
placed them, his act, his measure. He really seems to think he 
is playing the game of the soldier, and that the more he dares, 
the more his people will admire him, even though it be in daring 
to trample on their laws. But I choose to make good my position 
by proof. I care not to avail myself of his arrogated responsi¬ 
bility. I charge him with assuming a control over the public 
jnpney. I prove it by shewing that he has assumed to control 


14 


the discretion of the officer, to whose keeping it had been en¬ 
trusted by the Legislature. Did he not wantonly interfere with 
that discretion ? VViuit concern had he w it!i the subject matter 
of that discretion ? w hat right h.id he to demand of the Secreta¬ 
ry, on pain of official di^ath, a reason, either for ntoving, or not 
moving the deposites. The law required the Secretary, in rela¬ 
tion to this part of his duty, to reason with Congress, not with 
h'm. Did he not attempt to control that discretion, by obtruding 
his own opinion, and olLring his ow n responsibility, instead ot 
that discretion ? by the authori:ative language sounded iti the 
Secretary’s ears the very day after his ap[)ointment, *• the Pres¬ 
ident has determined that the (b-posites must be moved, you may 
call it my measure by giving the Secretary to understand, 
that if his discretion could not agree with tlie discretion ol the 
President, the President would expert him to resign ? And did 
he not etlet tua'Iy control the discretion that was set at the door 
of the treasury, w’hen he removed from before t'^at door, an op¬ 
posing discretion, and substituted a foim, repres- iiting his own 
discretion ? Did he not make his key of the officer, a key to 
the office ? The discretion of the Secretary w^as the law ot the 
case. It was the law* for the Ba-nk, it was the law for the gov¬ 
ernment. Both the contracting parties had agreed, to submit 
the propriety of removdug the mojiies from the Bank, to the 
Secretary of the treasury Mad either of the parties agreed to 
submit that matter to the discretion of the President 1 Is it not 
plain, that the President’s duty of faithlully executing the law, 
required him to protect the Secretary against all interlcieuce 
W'ith his discretion ; instead of that, he h'msell int<’rferes with it, 
overrules it, annihilates it, and thus violates the law he himself 
was bound to respect and execute. But is it true, that the l^res- 
idciit, as w^el! as others, w'as hound to respect this law' ? Is it 
true, that this discretion of the Secretary, was independent of 
the President? What the President may now' think of this 
question, I cannot say, fmther than i can speak from the pro¬ 
test. If that expresses the 0 [)inion the Presid‘Oit now enter- 
tai,:s, then he now thinks, that the Secretary is his mere instru¬ 
ment, and cannot have an independent discretion ; but that he 
once considered the Secretary’s discretion to he independent, 
we have his own words. Mow did h( approach l;im ? In 
the same pafiei-in which he says to the Secretaiy,I w ill take 
the responsibility of the act, it may be called my measure,” he 


15 


pToceeds to f?ay, “yet, sir, I will not undertake to interfere 
with the hutepcndeni exercise? of your discretion.” N' hat do 
these words mean ? Do they not prove, from liis own lips, our 
whole case in all its leni'th and hreadth ? Do they not admit 
that the law had vested in the Secrelary, a discretion indepen¬ 
dent of the President And when he says, “ I will not under¬ 
take to inJerfcre with your discretion,” does he not admit, that 
to meddle with it, would be inierference, and what is interference, 
but meddlm^i^ in a matter in which one has no concern. Is it 
not amazing, that after such an admission from his own mouth, 
the President .'*houl(I have pi‘oceed'-d to the extremity, of taking 
the official liO* ol' the Secretary, for the independent exerci.se of 
that very discretion, with which he, the IVe.sident, thus admitted 
he had no right to inteifere. But, it may he asked, can this be 
possible? Is there not some mistake in this matter ? If any 
such admission is contained in that laui^uage, could the Presi¬ 
dent have been so short-sighted as to use ii ? 'Phis is explained 
in a moment, by calling your attention to the precise point of 
time, at which this language was used. Can it he supposed he 
would have made this promise not to interfere, and this ad¬ 
mission ol his having no right to interfere, if he could have fore¬ 
seen, that Mr. Duane, by his firmne.ss, would put him to that 
very interference in undisguised form, by the hand o-f power, in 
removing him ? No, Fellow Citizens. This disclaimer of the 
rig't of interference, was made ai that fiartieular juncture, when 
the President became satisfied, that he had found his man. I he 
President deceived himself into this condemning admission. It 
was made at that [leriod, when he was satisfied that the Secre¬ 
tary would either yield his own discretion, to the more com¬ 
manding discretion of his great and good fiietul the President, 
or resign. It will be reniembered, that there was a time when 
it was the undersianditig of the President, that Mr. Duane was 
pledged tore.sign, if his law-imposed discretion, could not coin¬ 
cide with the assumed discretion of the President In this pos¬ 
ture of affairs, it was thought safe for the Pn-b-dent to say, “ I 
certainly will not undertake to interferr with the independent 
exercise of your discretion ” And there was a policy in using 
this language at that time. The message to the Secretary was, 
“the Presiibmt has determined that the deposites must be 
moved, I take the responsibility, call it my measure.” 1'his, it 
was thought, would ensure the act required of the Secretary, but 


16 


if nothing more was said, and the Secretary should comply, it 
might look too much like dictation on the part of the President, 
and uninquiring devotion on the part of the Secretary, and 
therefore these words, “ I will not undertake to interfere,” &c. 
were thrown in, to screen both the President and the Secretary, 
before the people, by persuading them, when the act should be 
done, that it was done, on the independent discretion of the Sec¬ 
retary. But things took an unexpected turn : Mr. Duane, on 
more reflection, refused, either to perform the act dictated, or 
to resign; that is, as was said on the part of the President, Mr. 
Duane deceived him. And it will be remembered, that Mr. 
Duane’s refusal to resign, upon the alleged promise so to do, if 
his discretion should not prove to be of the right sort, was in the 
excitement of the moment, openly made a ground of justification 
before the nation for turning him out. Mr. D. had made an 
Indian gift ; he first gave the President his discretion, upon the 
strength of which gift, the President disclaimed all right to in¬ 
terfere with it, and then took it back again, and obliged the 
President to exercise the very right he had thus disclaimed. 
But the fact that the President, as it turned out, was mistaken 
in the character o^Mr. D., does not relieve him from the ad¬ 
mission then made, that the Secretary’s discretion was inde¬ 
pendent, and that he had no right to interfere with it. 

But, though this is a truth the President once admitted, yet 
no other branch of the Government can be permitted to ex¬ 
press it, if the President should think fit to act in opposition to 
it. Whatever the king may think, yet when he comes to act, 
he can do no wrong. 

What more did the Senate do, than declare this same princi¬ 
ple, when, after the President had assumed a control over the 
public revenues, by controling the discretion of the Secretary, 
they resolved, that he had assumed powers, not granted by the 
Constitution and laws, but in derogation of both. 

But no sooner had the Senate passed this resolution, when 
lo ! the President, fearful that prerogative might lose in his 
hands, and determined to transmit to his successor, unimpaired 
prerogative — 

“ Generous lie rises in the crown’s defence, 

To curb the factious tongue of insolence ; 

Such just examples, on offenders shown, 

Silence sedition, and assert the throne.” 


17 


He sends to the Senate, and publishes to the people, tliis pa¬ 
per which I hold in my hand, this Protest. And it is indeed 
nothing short of the assertion of a throne. Before this protest 
appeared, we had been accustomed to say of the President, that 
he had not redeemed a single pledge on the faith of which he 
came into power. If the doctrines of this protest be true, he 
has certainly relieved himself from that reproach ; it fully and 
fairly redeems one of his pledges, the pledge that he would re¬ 
duce our Government to a simple machine. 

I can take, on this occasion, but acursdry view of this fextra- 
ordinary State paper. 

Its first position is, that the Senate haVe no right to express 
disapprobation of the President’s conduct. In answer to this, 
I will only take time to say, that ^ye read, that in England; it 
is no sedition to deny to the IiLmg, the prerogative of suspending- 
the law.” 

But again, it asserts that Congress cannot vest a disci'etion 
over the public monies, in any officer appointed and remdv-able 
by him, without vesting that discretion constructively in him. 
That though such officer may be nominally, yet that he, the 
President, is really and truly, the keeper of the purse, because 
he is the keeper of that officer’s discretion. That he is the 
keeper of that officer’s discretion, because he is responsible for 
his acts : and that he is responsible for his acts, because he has 
the power to remove him. 

This IS the plain doctrine of the protest. And the first ques¬ 
tion that irresistibly suggests itself, is, How is it to be accounted 
for, that the same man who before the act was done, could say 
to the Secretary, “ I will not undertake to interfere with the 
independent exercise of your discretion,” could, after the act 
-tvas done, declare that the Secretary had no independent dis¬ 
cretion, but was his mere instrument, and that Congress cannot 
vest an independent discretion in any officer appointed and re¬ 
movable by him ? It can only be accounted for by supposing, 
that before the act was done, the President had been deceived 
by Mr. Duane into an Unguarded admission ; or that he changed 
his opinion, when it became necessary to justify an act done. 
k is clear that the two papers are the production of two different 
minds, or at least of two different states of mind. 

The chain of reasoning as before deduced, it will be per¬ 
ceived, runs back and rests upon the power of removak This 

3 


18 


single power, is the grand source of his sole responsibility for 
all officers removable, and his sole responsibility is the founda¬ 
tion for his exercising his sole will. • And I admit that unless 
this chain of reasoning can be broken at some point, the Gov¬ 
ernment is logically and truly “ My Government.” 

r propose therefore to examine briefly, the origin and nature 
of this power of removal. And here it will be interesting to 
observe the solicitude of the President, that it should be fixed 
on a stable foundation. It was a saying of Archimedes, that if 
he could find a fulcrum for his lever, he could move the world. 
And, if the President’s deductions from the power of removal b6 
correct, if he can settle that power firmly, it is unquestionably 
true, that he can move the whole machinery of Government. 

We have been in the habit of supposing that this power in out 
Executive, has no other origin than the mere legislative con¬ 
struction of the first Congress ; no words giving it, are to be 
found in the Constitution. But the President is unwilling that 
a power of such immense importance in his system, should rest 
on a mere construction. He seems to have feared that this was 
too slender a foundation for his system of constructions. He 
first construes a sole will or discretion in himself from his sole 
responsibility; then construes his sole responsibility from hiS 
power of removal; and having thus raised two constructions 
upon the power of removd, he seems to have been unwilling to 
allow, that that power, the foundation of both the others,' Was 
itself but a mere construction. This looked to him, too much 
like building a house in the air. He therefore goes beyond our 
Constitution for this power, and declares that the words in that 
instrument, “ The Executive power shall be vested in a Presi¬ 
dent,” do not mean the Executive power defined in the grant, 
but that they give him original Executive power, and that the 
power of removal, is an original Executive power, left unchecked 
by the Constitution. 

I quote the words, “ In strict accordance with this principle, 
the power of removal, which, (like that of appointment,) is an 
original Executive power, is left unchecked by the Constitu¬ 
tion,” except as to the Judges. He thus gets an immovable^ 
real, not constructive foundation, for this power of removal, b.y 
drawing it from a source beyond and prior to the Constitution, 
and saying that the Constitution left it unchecked in his hands. 

From what source does the President‘derive his idea of on- 


gizial Executive power ? What standard of original Executive 
power, has he adopted ? If it had not been for his reference, 
we should have been at a loss to know, whether his standard 
wai that of Austria, or of Prussia, or of the Autocrat, or of the 
British King, Indeed I have always understood that original 
Executive power, was the same in all the Kingdoms of Europe, 
that there was but one standard, that it wa^ neither more nor 
less than the divine right of Kings. His reference to England 
for his standard, is not at all happy. Original Executive power, 
is not to be found, short of the dominions of some of the Conti¬ 
nental Kings. The British King does not enjoy it. It is true 
that he enjoys original Executive power, so far as it is left un¬ 
checked by declarations of rights in the people. And this makes 
it exceedingly evident, where the President’s thoughts were 
running, when he penned, or read the idea, that the power of 
removal is an original Executive power, left unchecked by the 
Constitution. Permit me now to mention, that on the occasion 
before alluded to, 1 asked this question, Who knows what 
effect the expression, “ the charter of our liberties,’’ and such 
like expressions, may have had on the mind of the Government, 
It is evident what effect they have had on the mind of the writer 
of the Protest. They have disabled him from forgetting and 
lepudiating the political vocabulary of Europe, and adopting 
the political vocabulary of Freemen. The idea of original 
Executive power is not American, it belongs to the old world 
and their institutions. In America, Executive power has no 
origiup except in specific constitutional grant, and no measure, 
except the measure and extent of that grant. 

But our present Executive is not the man to let Prerogative 
suffer abatement in his hands, nor to transmit impaired Exe¬ 
cutive power to his successor. And perhaps his solicitude to 
preserve, and transmit unimpaired, the Executive power of our 
system, as it is now used and exercised by himself, may furnish 
another reason for his advancing, at the time he did, the idea, 
that the power of removal was an original Executive power, left 
unchecked by the Constitution. It will be recollected, that at 
the time the protest was written, there was an offered resolution 
on the Senate’s table, that might come up for discussion, de¬ 
claring, in opposition to the opinion of the first Congress, that 
under our constitution, the power of removal from office did not 
exist in the President. It may have been supposed therefore, 


20 


to be not only an appropriate time^ but a duty restinj? on tbe 
President, and belonging to that class of duties falling under 
the head of seeing the laws faithfully executed, to apprise Con¬ 
gress at once, that it was impossible to disturb the President’s 
pQvyer of removal, that vyhether it could or could not be drawn 
from the Constitution, by construction, was immaterial, for that 
it was an original Executive power, and that it was left in the 
hands of our Executive, unchecked by the Constitution, Whether 
it was this intimation from the President, or the want of tirnCy 
that prevented that resolution being debated by the Senate, I 
will not undertake to say. 

But notwithstanding his claim of the power of removal, be¬ 
yond the Constitution, as an original Executive power, yet the 
l^esident does not waive the claim by construction, under the 
Constitution, on the authority of the first Congress. And now 
I come to the true origin of the doctrine of the power of removal 
in our Executive, for I presume that few will be found willing to 
accompany the President beyond the Constitution, in search of 
it. 

Does, then, the Constitution grant this power ? All will ad¬ 
mit, that it is in vain to look through the instrument, for any 
words containing the grant. The only power of removal frona 
.office, provided for in terms, by the Constitution, is, the power 
of removal by the Judgment of the Senate in cases of impeach¬ 
ment of officers. As to the power of the President alone, dis¬ 
tinct from the Senate, over officers and offices, the only provision 
•/s, “ the President shall have power to Jill up all vacancies that 
may happen during the recess of the Senate. 

The first Congress under the Constitution, by a barely pre¬ 
ponderating vote, upon considerations of supposed expediency, 
decided, as far as legislation by one Congress can decide a Con¬ 
stitutional question, that the President had, by construction, not 
only the right to Jill up vacancies that might happen, but also, 
the right to create vacancies ; that is, saving the solecism, to 
cause vacancies to happen, and then fill them up. 

It is i?ot necessary to my present purpose, to enter into an ar- 
gnment, on the correctness, or incorrectness, of this opinion of 
a meagre majority of the first Congress. Let every man make 
up his own opinion on the subject, under the influence of the 
flood of light, which experience has shed on it, since that vg.te 
of the Congress of ’89. 


21 


My present object is to shew, that the concession of this pow¬ 
er of removal, was by mere construction. And this will appear, 
from the nature of the arguments used in that Congress, for and 
against its existence. It will be recollected that Washington 
was then President, and that that staunch Democratic Whig. 
James Madison, was one of those who yielded the power. If 
he could become willing to yield power by construction, to the 
federal Executive, we might expect it of him more certainly, 
during the Administration of Washington. That the character 
of Washington had a powerful influence on his mind, in deciding 
the question, is abundantly plain from the reason he gave for 
his vote. That wise, but in this instance too confiding patriot, 
not too confiding from any thing that had then occurred to ex¬ 
cite apprehension, but too confiding for the day of naming suc¬ 
cessors, (he had had no vision of these days,) that same patriot, 
has left us, as the reason of his vote, that he was willing to ac¬ 
cord the power on the principle, that an eminent degree of pro¬ 
bity in the Chief Magistrate was to be presumed. And he at 
the same time declared, that there was another protection 
against its abuse, for that ‘‘ the wanton removal of meritorious 
officers, would subject the President to removal from his own 
high trust.” 

It should here be remarked, that this power was not asked 
jior sought by President Washington : the question came up in¬ 
cidentally. 

Those of that Congress who denied its existence, and there 
were names of equal weight, who, notwithstanding their equal 
willingness to trust power in Washington’s hands, did deny it; 
denied it on the ground that such a power under corrupt influ¬ 
ence, might utterly destroy that balance of the powers of Gov¬ 
ernment, which had been adjusted by the Constitution, and give 
to the Chief Magistrate an undue and dangerous control: that 
with such a power in his hands, the Government might be made 
the Government of his will. 

Now it will be perceived that the position taken by each side 
in this argument, was acknowledged by the other to be correct. 
Those who denied the power, admitted, that in the hands of 
eminent probity, it would be harmless. Those who conceded 
it, admitted, that under corrupt influence, it would be destruc¬ 
tive. Of the truth of the first position, we have had the most 
gratifying experience through the Administration of every Pres- 


22 


ident down to the accession of General Jackson. The Admin¬ 
istrations of Washington, Adams, Jefferson, Madison, Munroe, 
and the younger Adams, all gave gratifying evidence of the truth 
of the position, that such a power in the hands of eminent pro¬ 
bity, is harmless. Recollect—pause a moment, and let the idea 
make its impression, —each and every one ofthese Presidents 
possessed this same power of removal, that General Jackspn 
came into possession of. Has he, or has he not, exercised it 
on a different principle from that on which it was exercised by 
his predecessors, one and all of them ? Can any man shut up 
his senses from the perception of the glaring truth, that when 
General Jackson came to the administration of our ExecutivCy 
this power of removal was immediately converted from a simple 
oar, the only use that all the other Presidents had made of it, 
into the ver^ helm of State. Not one of his predecessors per¬ 
mitted himself to make it a business to make the most of this 
power, and to try, to its full extent, its controlling influence over 
the machinery of our Government. Therefore, through all their 
Administrations, it proved to be harmless, and the experience of 
all that lapse of time, seemed to have established the safety of 
Mr. Madison’s position. 

On the other hand, those of the first Congress who were 
willing to concede the power, admitted that in the hands of a 
man disposed to make the most of it, it would be destructive. 
Will any man say that the present Executive has not made the 
most of it ? And does not the present posture of our affairs 
prove the correctness of the position taken by those who denied 
its existence, that it might be made the instrument of accumula¬ 
ting overgrown power in the hands of the Executive ? The 
advocates of the different sides of this question, differed only 
here. One side thought it supposeable that the Executive 
might fall under corrupt influence, and therefore denied the 
power. The other side thought it not supposeable, and there¬ 
fore conceded the power. Have we not sufficient experience 
before our eyes, to shew us that Mr. Madison’s supposition is a 
fearful ground, on which to rest the safety and permanency of 
our institutions. 

But enough has been said to shew that this power of removal 
is a mere construction. I remark in the next place, that either 
President Jackson is wrong in his inferences from it, or the 
first Congress w^ere wrong in conceding it; for it is not to b^^ 


23 


believed, that they intended to give him what he unhesitatingly 
claims through it—the custody of the public money. 

And here it becomes necessary to look at the extent of the 
President’s inferences. No one of the former Presidents seems 
to have had any conception of the reach of this principle, rior 
to have dreamed where, from this principle as a starting point, 
an apt reasoner might soon arrive. But Gen. Jackson’s supe¬ 
rior aptness at construction, has enabled him to infer from the 
power of removal, a responsibility of equal extent, that is to say, 
that he is responsible for the official conduct of every officer he 
can remove ; this is his first advance, by construction ; next, 
from this inferred responsibility, he again infers or construes, 
that the discretion of every such officer must be subject to his 
discretion, otherwise he cannot be responsible for him. This 
is the second step in the argument, and now comes the conclu¬ 
sion : When Congress, therefore, subjected the public money 
to the discretion of an officer removeable by me, they, by ne¬ 
cessary construction, subjected it to my discretion. The 
doctrine of the protest, is, that Congress cannot vest a dis¬ 
cretion over the public money, in any officer removable by 
him, without vesting that discretion in him. It boldly asserts, 
that the power of putting a man out of office, makes him, legally 
and constitutionally, the mere instrument of the President while 
in office, and that he can have no will or discretion, opposed to 
the will or discretion of the President. Its language on this 
point is as follows : “ The Secretary of the Treasury being ap- 
“ pointed by the President, and being considered constitution- 
“ ally removable by him, it appears never to have occurred to 
‘‘ any one in the Congress of 1789, or since, until very recently, 
‘‘ that he was other than an Executive officer, the mere instru- 
“ ment of the Chief Magistrate, subject to his supervision and 
“ control.” 

He thus makes good his first position, that the Secretary of 
the Treasury, like ail other officers removeable by him, is his 
mere instrument^ subject to his supervision or control. 

Here the Legislature may be supposed to ask, cannot we re¬ 
pose a special trust in the secretary of the treasury, and by 
express provision of law, refer it to him to judge, independ¬ 
ently of the President, whether the money shall be moved from 
the place where we order it put ? Does the fact that he is 
removable by the President, make it impossible for us to con- 


I 


24 


stitute him the judge, without constituting the President the 
judge ? And does not the provision in the law, that the reve¬ 
nues shall be deposited in the U. S. Bank, ‘‘ unless otherwise 
ordered by the secretary,” upon reasons to be given by him, to 
Congress, and not to the President, constitute him the judge, 
independently of the President ? And what is the unblushing 
answer of the Protest, to this question ! The difficulty, in 
any mind, will not be, in at once scorning the answer, 
but in believing, that any man could be found to venture such 
an answer in the face of the American people. The an¬ 
swer is not given, in the blunt NO ; no law can vest in an 
officer, removeable by the President, a discretion independent 
of his will, but is given in this more courtly phrase, in the Pro¬ 
test —“ It is not to be considered, that this provision, in any 
degree, altered the relation between the Secretary of the trea¬ 
sury, and the President; ”—that is to say, before the law made 
that provision, the Secretary was his mere instrumeht, subject 
to his supervision and control, and that provision ‘‘ is not to be 
considered as having in any degree altered the relation be- 
“ tween the Secretary and him he remained his mere instill¬ 
ment as before, and still subject to his supervision and control, 
in the matter of the money, as in all other matters ; the effect of 
the law was, that the monies should be deposited in the U. S. 
Bank, unless the President should otherwise order and direct. 

It would be an extraordinary [the language of the protest] re- 
‘‘ suit, if because the person charged by law with a public duty, 
is one of the Secretaries, it were less the duty of the President 
“ to see that law, (duty) faithfully executed.” That is to say, 
it would be very extraordinary, if, when the Secretary or mere 
instrument of the President is charged with a duty, the President 
is not charged with that duty. It would be very extraordinary, 
if, when a control over the public money is vested in his Secre¬ 
tary or mere instrument, it is not vested in him. It is a mistake 
to suppose that Congress can vest in his officer an independent 
discretion. The question, it will be perceived, between the 
President and the Senate, on this part of the subject, is simply 
and plainly this : The Senate hold, that the Legislature can 
give the custody of the public money to an officer appointed by 
the President, and removable by him, without necessarily giv¬ 
ing its custody to him. The President in this protest denies 
that any such thing can be done. 


25 “ 


Let us how return to Mr. Madison, and ask him, if he had 
hny adequate notion of the tremendous power of construction, 
when he construed the power of removal from office, to exist 
in the President. What would he say ? Would he admit that 
he had been wrong ? or would he say that Gen. Jackson’s con¬ 
structions were wrong ? Which he would say, t will not 
guess ; but one thing 1 know : he would say that one or the 
Other of them, was certainly wrong. 

If Mr. Madison, and those who with him advocated 
the constructive power of removal from office, could have seen 
that it was a fair inference, that every officer removable by 
the President, was legally and necessarily the mere instrument 
of his will — if they had had the sagacity to make this step in 
the argument, I think they would have paused ; for they would 
have brought themselves within plain sight of the conclusion, 
that the admission of the power would, by necessary construc¬ 
tion, place a sovereignty in one man’s will. 

To what school of politics Gen. Jackson really belongs, I 
will not undertake to determine. They who support the doc- 
tfines of his protest, particularly the leaders, profess now to be 
real disciples of the democratic school, either original, or late¬ 
ly converted. Will some such genuine democratic leader, in¬ 
form me, how long it is, since democracy became fond of 
granting power to the Federal Executive, by construction. 1 
suspect, that if we look into the history of democracy a little, 
this facility of granting constructive power to the Executive, 
will be found only among lately converted democrats. Old- 
fashioned democracy, was but another name for the lynx-eyed 
jealousy of Freemen against the growth of Executive power. 
More especially, will any such leader inform me, how long it 
is since democracy became willing to grant to the Executive, 
(always the object of its peculiar distrust,) a control over the 
public treasure, by construction. The true spirit of democracy, 
of all its characteristics, is marked by none more strongly, than 
by its unsleeping watchfulness over the public treasure It is 
that spirit which wields the ffaming sw'ord at the door ol’the 
treasury, turning every w^ay, to meet and repel the approach 
of Executive power. No call for treasure, reaches the ear of 
that spirit, except the voice of the Legislature. No hand has 
been able to turn aside the point of that sword, but the hand 
that presented the order of the Representatives of all the peo* 

4 


26 


pie. We have heard of laying spirits. I ask, has this sleep-' 
less spirit of Democracy been laid ? Has the figure of the 
Monster that lives in the imagination of the President, and 
haunts his dreams with visions of his dear people ruined soul 
and body by its corrupting influence, and which induced him, 
good man, to present himself before the door of the treasury, 
and entreat the spirit that guarded it, to confide the treasure to 
his keeping, for the protection of the morals of the community ; 
has that same figure haunted also the dreams of democracy, 
laid its watchfulness asleep, dispelled its long cherished jealousy 
of Executive power, or so distorted its vision, that it can now 
see in a strong Executive nothing but the kind guardian of the 
liberties of the people, the preserver of their morals, and the 
rightful keeper of the nation’s purse ? A vast deal has been- 
done to lay this spirit. The Post Office Department and a post 
dffice press, have been put in requisition to lay this spirit, by the 
soothing enchantment of glorification of the Executive, on the 
one hand, and horrid imprecations, on the other, upon a fiscal 
agent of the Gov’nt, which, after a useful life of near 40 years 
among us, under two charters, is said to have suddenly developed 
the features of a hydra, preying upon the liberties and morals of 
the people, and therefore is not to be suffered to live. But after 
all the treasure expended, and all the labor of a subsidized press, 
to withdraw republican jealousy from an encroaching Execu¬ 
tive, by attempting to fasten it on another object, the spirit of 
democracy is not laid, ft is but a bastard spirit, that may have 
been conjured and laid. The true democracy of the country 
is still broad awake, enquiring for the treasure : and where 
does it enquire f It enquires of Congress — where is the na¬ 
tion’s treasure ? I find it not where the law placed it; is it 
where the law has not placed it ? And when to this question it 
gets no answer, my word for it, it will hold Congress respon¬ 
sible for the sufficiency of the reason, why the treasure is not, 
where the law placed it. I think I see the true spirit of democ¬ 
racy, in embodied form^ taking its stand in the rotunda of the 
Capitol, and sending its voice through all its halls — “ I hold- 
the Representatives of all the people, responsible for the suffi¬ 
ciency of the reason, why the treasure is elsewhere, than 
where the law placed it.” And I think I see Gen. Jackson en¬ 
ter the Rotunda, with an air expressive of a confidence of ap¬ 
peasing this spirit, with the Protest in his hand, and hear him 


27 


^‘ea<l from that Constitutional text book—‘‘I arn the direct 
representative of the American people” — I am responsible 
for the treasure. And I hear the spirit, in amazement, ans¬ 
wer — You the representative of all the American people I 
Do you fill all this building ! ! What a monster ! ! ! 

I wiW now attempt to find the application of the phrase, so 
often used in connection with his removal of the Secretary of 
the Treasury, that it is the President^ duty to take care that the 
laws be faithfully executed. These words were resorted to, for 
justification, very early. As soon as the act was done, that 
men might not be betrayed into contradictory modes of justifi¬ 
cation, the official Globe threw out for immediate use, that the 
President was only taking care that the laws be faithfully exe¬ 
cuted. All would adopt this, for the very reason, that none 
could see its application ; they would fear to give another rea¬ 
son, lest it might afterwards be found to contradict the un¬ 
known meaning of this. At a very early meeting of the citi¬ 
zens of Newark on this subject, I took the liberty to throw 
out the idea, that these words could have no possible applica¬ 
tion to the subject, unless the President took the liberty to mis¬ 
read the law, and to read must, for may, that is, unless the 
President, instead of reading the law as it is in substance, 
the Secretary may remove the deposits, read it, the Secretary 
must remove the deposits.* It appeared to me, that this was 
the only possible way in \yhich this boasted duty of seeing the 
laws executed, could be made to have any possible bearing on 
the case, and from the manner in which the suggestion was re¬ 
ceived by that meeting, I believe it was thought by them, as 
well as myself, that if that was the only application the words 
could have, it was an application laughably absurd. 

What was my surprise, when the protest appeared, to find 
that this was the very application given to those words, by the 
writer of that instrument. You will not find it in this palpably 
absurd form ; it is dexterously elicited — the idea is thrown out 
in halves, in two disjointed paragraphs. In the first paragraph 
I shall read from, this language is used “ It cannot be 

doubted that it was the legal duty of the Secretary of the. 
“ Treasury to order and direct the deposites of the public money 
“to be made elsewhere than in the Bank of the U. S. whenever 

♦The pravision of the law is, that the deposits shall be made in the United States 
Bank, unless the Secretary of the Treasury shall otherwise order. By the law, there» 
fore, the Secretary may remove the deposits. 


28 


sufficient reasons existed for making the change.” Where ? 
I ask, whenever sufficient reasons existed where ? As we read 
the law, it is whenever sufficient reasons existed in the mind of 
the Secretary, for the law requires the Secretary to give his 
reasons to Congress. The writer of the Protest does not so 
read the law, and yet he seems exceedingly shy of his own 
reading of it: he is careful not to throw out his whole idea in 
one sentence, or even in one paragraph ; he is careful not to 
carry out the sentence so as to make it read, “ whenever suffi¬ 
cient reasons existed in the mind of the President,” and there¬ 
fore he carries out the sentence blindly, thus, “ whenever suffi¬ 
cient reasons existed,” without saying where or in whose mind. 
The next paragraph I shall read from, will fill out the sentence 
and give us the other half of the idea. Its language is this : 
“ During the last year the approaching termination of the Bank 
“ of the U. S. made it expedienty and its exposed abuses and cor- 
ruptions made it, in my opinion, the duty of the Secretary of 
<‘the Treasury to place the money in other depositories. The 
“ Secretary did not concur in that opinion.” We are now pre¬ 
pared to read out the imperfect sentence of the other paragraph 
—“It cannot be doubted that it was the legal duty of the Sec- 
“ retary to order the deposites to be made elsewhere than in 
“the Bank of the U. S. whenever sufficient reasons existed,” in 
the opinion of the President, “ for making the change.” Having 
thus brought the two halves of the idea together, the connection 
between the opinion of the President and the legal duty of the 
Secretary, is seen at one glance. The opinion of the President 
Cireates the legal duty of the Secretary. “ Whenever sufficient 
“reasons existed” in the opinion of the President, “it was the 
“ legal duty of the Secretary;” And what is a legal duty, but a 
law ? The two words legal duty, do not sound so harsh in this 
connection, as the one word, law. It is rather more courteous 
to say, the opinion of the President was the legal duty of the 
Secretary, than to say, the opinion of the President w^as the 
law for the Secretary. I always prefer using the shortest ex¬ 
pression, particularly if it gives the sense more strongly. The 
opinion of the President, then, w^as the law for the Secretary. 
In short, wffienever the President chose to drop the word may^ 
:and to read, the deposits must be moved, that became the law. 
What next ? This same paragraph proceeds to tell us, “ If in 
such a case Jie, (the Secretary,) neglected or refused to act, 


29 


** he would neglect or refuse to execute the Zmo.” What law ? 
What law would the Secretary refuse to execute ? Have you 
seen any other law yet, but this same law of the President’s 
opinion ? this must, that he reads in the place of may ? None. 
What next ? The paragraph proceeds, “ What then would 
“ be the sworn duty of the President ?” Now for the applica¬ 
tion of the phrase. Certainly nothing less than to execute this 
law of his own cpiniony which the Secretary refused to execute. 
But this law had existed along time. He had sent tlis same 
law, his own opinion, to the preceding Congress, and declar¬ 
ed to them that the revenues were not safe in the United States 
Bank : that Congress, with a majority of his own friends, had 
returned for answer, not only that they would not execute that 
opinion, or law, but had treated it with more contumely^ cer¬ 
tainly, than Mr. Duane showed afterwards, to the same law. 
They told him that his opinion was groundless, and that the 
United States Bank was the safest place for the money : they 
went even to the length of declaring, that the Bank should be 
re-chartered, and actually passed a bill for that purpose, and 
sent it to him for his signature. It is true, he put the bill into 
his pocket, and refused to send it back, lest, as he himself said, 
the Bank should corrupt a sufficient number of his friends, to 
pass the bill by two-thirds. A man may take a liberty some¬ 
times with his friends. But why was it not then immediately 
his duty, to execute this same law of his own opinion ? The 
language of the Constitution is general: “ He shall take care 
“ that the laws be faithfully executed.” Is he excusable for not 
executing the law, because Congress entertain a different opin¬ 
ion from him ? There is no such qualification of his duty, in 
the Constitution. Or is he bound to execute the law, only in 
cases where he has the power of removing the refractory sub¬ 
ordinate ? and will he attempt to excuse himself, for not exe¬ 
cuting the law, at once, on the ground that he had not the pow¬ 
er to remove Congress ? There is no such qualification of his 
duty, in the Constitution : that simply provides, “ He shall 
“ take care that the laws be faithfully executed.” He was just 
as much bound, by the terms of the Constitution, to execute 
that law of his own opinion, when Congress refused to do it, 
as when the Secretary refused to do it. His duty don’t depend 
at all, by the Constitution, on his power of removal : it sim¬ 
ply provides one rule for all cases, He shall take care that 


30 


,** the laws be faithfully executed.’^ And yet, the President 
seems to have been willing to think all along, that his opinion 
was the law, only in cases where he had the power of removing 
refractory subordinates whereas it is evident, that the 
Constitution covers the whole ground, and all cases — “ He 
shall take care that the laws be faithfully executed.” 

But to return to the execution of the law, of his opinion, 
through the Secretary : — How is he to execute it ? The Sec¬ 
retary having a different understanding of the law from him, 
tells him — Mr. President, your opinion is not the law of the 
case, my opinion is the law of the case ; and if you execute 
your opinion, which is not the law, against my opinion, which 
is the law, you will certainly not execute the law, but break 
the law. But, Mr. Secretary, answers the President, (read 
from the Protest,) “ Might I not be told, that it was for the 
sole purpose of causing all Executive officers, from the high- 
“ est to the lowest, faithfully to perform the services required 
“ of them by law, that the people of the United States, made 
‘‘ me Chief Magistrate ?” Very true, Mr. President, but am 
I not faithfully performing the services required of me, by that 
law which says the deposits shall be made in the United States 
Bank, unless I shall otherwise order, on reasons to be render¬ 
ed by me, to Congress : am I not faithfully executing that law, 
by refusing to remove the money, if I think it safe where it is, 
and would be unsafe elsewhere ? Why, really, Mr. Secreta¬ 
ry, you seem to speak as if the discretion was in you. Sir— 
you are the mere instrument in my hand, and can the instru¬ 
ment in my hand hold a discretion ? Can the sword in my 
hand move one way when I direct its movement in another ? 
Read from the Protest, “ The Constitution has clothed me with 
“the entire Executive power of this Government;” and “the 
“ custody of the public money is an Executive function which 
“has always been exercised (by the Executive he would say,) 
“ through the Secretary of the Treasury” (as his mere instru¬ 
ment). And if Congress thought they could alter this state of 
things and vest an independent discretion in my mere instrument, 
they did not understand the Constitution nor the laws. (Read 
from the Protest.) “ It is not to be considered that this provision 
“ in any degree altered the relation between the Secretary of 
“ the Treasury, and the President as the responsible head of the 
“ Executive department.” I tell you, Sir, it is my sworn dutj^ 


31 

faithfully to execute the law — that the deposites must be 
moved, “>even in the painful alternative” (in the language of 
the protest) “of dismissing the head of one of the departments,” 
and “supplying his place with one whose opinions are well 
“ known to me.” If I cannot execute this law of my opinion at 
one move, through you, I can execute it at two moves, one move 
and another move through my mere instrument Taney. 
And it would be strange indeed, if the President could not find 
one mere instrument in the United States, one man who would 
tigree to think as he did. I stop for a moment, to inquire, how 
does the doctrine of the Protest agree with the language Used' 
to Mr. Duane, when it was expected that the law would be ex¬ 
ecuted through him, “ I certainly will not undertake to inter- 
“ fere with the independent exercise of your discretion.” 

And now. Fellow-citizens, I ask again, what law did he ex¬ 
ecute ? I ask the whole host of his supporters, what law did 
he execute ? Has any man attempted to tell us ? Was there 
a law which said the deposits must be moved ?—There was 
such a law. It passed directly from the White house, to the 
apartment of Mr. Duane, the day. after his appointment, by 
the hand of that special agent, Reuben M. Whitney, a mem¬ 
ber of the lower Cabinet, “ The President has determined that 
“ the deposits must be moved ; call it my measure ; / take the 
“ responsibility.” This was the laio he executed : no other, 
than his own must. And a press exists among us, which has 
had the audacity to insult the understanding of the American 
people, by oifering, in justification of such an act, the lan¬ 
guage of the Constitution, “ He, (the President,) shall take 
“ care that the laws be faithfully executed.” Is there a man 
here, who is yet willing to be called a Jackson man ? Let him 
stand out and tell me, what other law did he execute, than 
his own opinion, — “ in my opinion, it was the legal duty of the 
“ Secretary,” &c. : “ if in such case he refused, he would 
“ refuse to execute the law,” and “ what would then be the 
“ sworn duty of the President ?” 

And is it come to this ? Is the Executive first to declare 
the law, and then tell us it is his sworn duty to execute it ? 
What prevents one universal burst of execration, from one 
end of the land to the other ? But one answer can be given, 
and that is to be found in the incredulity of men, aided by vt 
corrupt press, to divert their attention from the true question^ 


32 


by such senseless cries, as the cry of ‘‘ Bank or no Bank,*^ 
and a standing corps of disciplinarians, distributed among uSj 
to echo the cry through the whole land, “ Bank or no Bank.” 
And this is but another exhibition of the prodigious and con- 
troling effects of the power of creating and filling vacancies, 
in the hands of a man who will make the most of it. Under 
a systematic exercise of this power, we have now reached a 
period in our history, when, possibly, a corrupt administration 
cannot be put down, becauseits very corru ption has secured 
the means of preventing the truth from having its proper effect 
upon public sentiment. 

How shall I speak with sufficient indignation of this body of 
political heresy ! How express my amazement that any man 
should dare proclaim such doctrines to the American people ! 
If an American who understands the case, can subscribe to 
these doctrines^ let him erase the 4th of July from his calendar. 

If the doctrines of this protest be true, then this people — 
the American people — the purchase of whose rights cost 
seventy-five thousand of the lives of their ancestors, have found 
a sovereign. In this number, I do not include the lives of those 
Americans who, in that struggle, ranged themselves on the 
side of Executive power. Seventy-five thousand Whig lives, 
were poured forth in that glorious struggle ; and is a genera¬ 
tion of Whigs but one remove from such an ancestry, to be 
reconquered in 50 years, to a subjection to one sovereign will ? 

Fellow-citizens, this period of time will stand out in the 
history of our country, and this generation will be conspicuous, 
either for successful resistance to Executive encroachment, 
or for shameful recreancy in the cause of Constitutional Gov¬ 
ernment. Can any man shut his eyes to the fact, that the 
present posture of our affairs, is such as never before existed ? 
and the claim of power on the part of the present Executive, 
such as has never before been made ? What former President, 
ever dream’t of sueh pretensions to power ? And will not 
men’s indignation kindle at the recollection, that the man 
claiming and exercising this before unheard of power, is a 
soldier, and that he boldly and unblushingly relies upon the 
usurper’s reason, it is expedient ? And do not men blush for 
their country, at the reason of expediency that he dares to as¬ 
sign — that money is the great corrupter of the American peo¬ 
ple, and that he will not be responsible for their morals, if their 


3S 

money is under any other, than his own control ? that they 
shall no longer have an agent, constituted by themselves, 
through their Legislature, (and which they have had for near 
forty years, under two laws,) to keep safe, and transmit the 
public revenues, and establish an equal currency, because, 
mark his reasons, because, it will corrupt the people^s morale ! 
How have the people been prepared to receive, from the Pres¬ 
ident, such an indignity ! I answer, by the power of the 
Press. And I here beg leave to introduce a short extract in 
relation to the Press, from an address written two years ago, 
by the speaker, to be delivered in this place. This engine, 
(the Press,) with enlightened public opinion for its moving 
power, is of force to redeem the world. It has carried the 
hand writing on the wall, to the very chambers of despotic 
power. It has swayed the thrones of tyrants, and rocked Eu¬ 
rope with convulsions. But this same engine, without the bal¬ 
ance wheel of moral principle, would soon acquire a momen¬ 
tum beyond the reach of check, and then sweep on in its tre¬ 
mendous career, leaving nothing but desolation in its train. A 
free press without the check of moral principle, by its power 
to move the passions of men, is capable of carrying them to 
that point of licentiousness, at which they would be ready to 
throw off the restraints even of a free Government. While, 
therefore, a free and virtuous press, might act with so much 
power on the nations of the earth, a corrupt press, might 
soon sow the seeds of our own dissolution. Then follows a 
remark to which I call your attention : there seems to have 
been something prophetic in it: And whenever the press shall 
have become the hireling of power, then you may soon expect 
to find, that power has cut itself loose from all Constitutional 
limit. 

And now, Fellow-citizens, is there not something in the 
posture of our affairs, suited to present to the mind, the mel¬ 
ancholy reflection, that even here, a failure of Free Govern¬ 
ment is possible ? not for the want of purity and energy in our 
institutions, bnt, for the want of purity and fidelity in those 
who administer them, and of fidelity, in the people, to their 
own institutions ? But if, under such a Constitution, with a 
continent to ourselves, and out of the reach of the millions of 
bayonets that govern for Kings, we fail, in what portion of 
the earth, in what period of time, and under what condition of 

5 


34 


ihe human mind, shall the experiment of free instutions, suc¬ 
ceed ? It must succeed here — it cannot fail here, unless the 
people fail to be true to themselves. Temporary embarrass¬ 
ments may occur, from the restlessness of man, or from re¬ 
creancy in some department of power : but these embarrass¬ 
ments can only be temporary, unless the people support the 
recreant department. There is still a redeeming spirit in our 
institutions, a residuum of power in the hands of the people, 
to be exercised at short intervals, which can rescue both them¬ 
selves and the Constitution, from the grasp of lawless power. 



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